<PAGE>
EXHIBIT 10.20
================================================================================
REVOLVING CREDIT AGREEMENT
dated as of December 29, 2004
among
CHOICEPOINT INC.,
as Borrower,
THE LENDERS LISTED HEREIN,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
SUNTRUST BANK,
as Syndication Agent,
and
BNP PARIBAS,
as Documentation Agent
WACHOVIA CAPITAL MARKETS, LLC and SUNTRUST CAPITAL MARKETS,
INC.,
as Co-Lead Arrangers
WACHOVIA CAPITAL MARKETS, LLC,
as Sole Book Runner
================================================================================
<PAGE>
SCHEDULES
SCHEDULE 1.1(a) -
Syndicated
Lenders and Syndicated Loan Commitments
SCHEDULE 1.1(b) -
Existing
Letters of Credit
SCHEDULE 1.1(c) -
Mandatory
Cost Formulae
SCHEDULE 5.13
-
Organization and Ownership of Subsidiaries
SCHEDULE 5.22
-
Outstanding Indebtedness
EXHIBITS
EXHIBIT A
- Form of
Syndicated Note
EXHIBIT B
- Form of
Swing Line Note
EXHIBIT C
- Form of
Guaranty Agreement
EXHIBIT D
- Form of
Contribution Agreement
EXHIBIT E
- Form of
Closing Certificate
EXHIBIT F-1
- Form of
Opinion of Jones Day
EXHIBIT F-2
- Form of
Opinion of in-house general counsel
EXHIBIT G
- Form of
Assignment and Acceptance Agreement
EXHIBIT H
- Form of
Compliance Certificate
EXHIBIT I
- Form of
Notice of Borrowing
EXHIBIT J
- Form of
Notice of Conversion/Continuation
EXHIBIT K
- Form of
Notice of Account Designation
EXHIBIT L
- Form of
Notice of Prepayment
<PAGE>
REVOLVING CREDIT AGREEMENT
THIS
REVOLVING CREDIT AGREEMENT made and entered into as of December
29,
2004, by and among CHOICEPOINT INC., a
Georgia corporation ("Borrower"),
WACHOVIA BANK, NATIONAL ASSOCIATION, a
national banking association
("Wachovia"), the other banks and lending
institutions listed on the signature
pages hereof, and any assignees of
Wachovia, or such other banks and lending
institutions which become "Lenders" as
provided herein (Wachovia, and such other
banks, lending institutions and assignees
are referred to collectively herein as
the "Lenders"), and Wachovia, in its
capacity as Administrative Agent for the
Lenders and each successor Administrative
Agent for such Lenders as may be
appointed from time to time pursuant to
Article IX hereof (the "Administrative
Agent").
W I T N E S S E T H:
WHEREAS,
Borrower has requested that the Lenders extend to Borrower
certain credit facilities, amend and
restate the Existing Credit Agreement and
the Lenders are willing to do so, on the
terms and subject to the conditions
contained herein.
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants
herein contained, Borrower, the Lenders and
the Administrative Agent agree as
follows:
ARTICLE I.
DEFINITIONS; CONSTRUCTION
SECTION
1.01. DEFINITIONS. In addition to the other terms defined
herein,
the following terms used herein shall have
the meanings herein specified (to be
equally applicable to both the singular and
plural forms of the terms defined):
"Administrative Agent" shall mean Wachovia in its capacity as
Administrative Agent hereunder, and any
successor Administrative Agent appointed
pursuant to Section 9.10.
"Administrative Agent's Correspondent" shall mean Wachovia Bank,
National
Association, London Branch, or any other
financial institution designated by the
Administrative Agent to act as its
correspondent hereunder with respect to the
distribution and payment of Alternative
Currency Loans.
"Advance"
shall mean any principal amount advanced and remaining
outstanding at any time under (i) the
Syndicated Loans, which Advances shall be
made or outstanding as Base Rate Advances
or Eurodollar Advances, as the case
may be, and (ii) the Swing Line Loans,
which Advances shall be made or
outstanding as Swing Line Advances.
<PAGE>
"Affiliate" of any Person means any other Person directly or
indirectly
controlling, controlled by, or under common
control with, such Person, whether
through the ownership of voting securities,
by contract or otherwise. For
purposes of this definition, "control"
(including with correlative meanings, the
terms "controlling", "controlled by", and
"under common control with") as
applied to any Person, means the
possession, directly or indirectly, of the
power to direct or cause the direction of
the management and policies of that
Person.
"Agreement" shall mean this Revolving Credit Agreement, as
amended,
modified, restated, or supplemented from
time to time.
"Alternative Currency" shall mean (a) Euro, (b) Pounds Sterling and
(c)
with the prior written consent of each
Lender, any other lawful currency (other
than Dollars); provided that such currency
is freely transferable and
convertible into Dollars in the United
States currency market and freely
available to each Lender in the London
interbank deposit market.
"Alternative Currency Amount" shall mean, at any time, with respect
to any
amount denominated in Dollars, the
equivalent amount thereof in the applicable
Alternative Currency at the most favorable
spot exchange rate for the purchase
of such Alternative Currency with Dollars,
as determined by the Administrative
Agent or the Issuing Lender, as applicable,
at approximately 11:00 a.m. (the
time of the Administrative Agent's
Correspondent) two (2) Business Days prior to
the date on which the foreign exchange
computation is made.
"Alternative Currency Commitment" shall mean the lesser of (a)
$200,000,000 and (b) the total Syndicated
Loan Commitments.
"Alternative Currency Letter of Credit" shall mean any Letter of
Credit
denominated in an Alternative Currency.
"Alternative Currency Loan" shall mean any Syndicated Loan
denominated in
an Alternative Currency.
"Applicable Commitment Percentage" shall mean the percentage
designated on
the chart set forth below based on
Borrower's ratio of Funded Debt to
Consolidated EBITDA, measured quarterly,
effective in the second fiscal quarter
immediately following the date of delivery
of the Compliance Certificate to the
Administrative Agent:
<TABLE>
<CAPTION>
FUNDED DEBT TO CONSOLIDATED
APPLICABLE COMMITMENT
LEVEL
EBITDA RATIO
PERCENTAGE
-----
----------------------------------------
---------------------
<S>
<C>
<C>
I
Greater than or equal to 2.00 to 1.00
0.250%
II
Greater than or equal to 1.50 to 1.00, but
0.200%
less than 2.00 to 1.00
III
Greater than or equal to 1.00 to 1.00, but
0.175%
less than 1.50 to 1.00
IV
Greater than or equal to 0.50 to 1.00, but
0.150%
less than 1.00 to 1.00
</TABLE>
2
<PAGE>
<TABLE>
<S>
<C>
<C>
V
Less than 0.50 to 1.00
0.125%
</TABLE>
For purposes of the foregoing, (i) the
Applicable Commitment Percentage on the
Closing Date shall be based on the
certificate delivered pursuant to Section
4.01(xvi) until the first calculation date
following the receipt of the
Compliance Certificate for the fiscal
quarter ending December 31, 2004 and (ii)
if Borrower fails to provide the Compliance
Certificate and related financial
statements required by Section 6.07 within
the applicable time period set forth
therein, the Applicable Commitment
Percentage shall be adjusted to Level I on
the first day of the following fiscal
quarter until such Compliance Certificate
and related financial statements are
delivered.
"Applicable Margin" shall mean the percentage designated on the
chart set
forth below based on Borrower's ratio of
Funded Debt to Consolidated EBITDA,
measured quarterly, effective in the second
fiscal quarter immediately following
the date of delivery of the Compliance
Certificate to the Administrative Agent:
<TABLE>
<CAPTION>
FUNDED DEBT TO CONSOLIDATED
LEVEL
EBITDA RATIO
APPLICABLE MARGIN
-----
------------------------------------------
-----------------
<S>
<C>
<C>
I
Greater than or equal to 2.00 to 1.00
1.000%
II
Greater than or equal to 1.50 to 1.00, but
0.800%
less than 2.00 to 1.00
III
Greater than or equal to 1.00 to 1.00, but
0.575%
less than 1.50 to 1.00
IV
Greater than or equal to 0.50 to 1.00, but
0.475%
less than 1.00 to 1.00
V
Less than 0.50 to 1.00
0.375%
</TABLE>
For purposes of the foregoing, (i) the
Applicable Margin on the Closing Date
shall be based on the certificate delivered
pursuant to Section 4.01(xvi) until
the first calculation date following the
receipt of the Compliance Certificate
for the fiscal quarter ending December 31,
2004 and (ii) if Borrower fails to
provide the Compliance Certificate and
related financial statements required by
Section 6.07 within the applicable time
period set forth therein, the Applicable
Margin shall be adjusted to Level I on the
first day of the following fiscal
quarter until such Compliance Certificate
and related financial statements are
delivered.
"Application" shall mean an application, in the form specified by
the
Issuing Lender from time to time,
requesting the Issuing Lender to issue a
Letter of Credit.
"Asset
Sale" shall mean any sale or other disposition (or a series of
related sales or other dispositions),
including without limitation, loss,
damage, destruction or taking to the extent
not covered by insurance, by any
Consolidated Company to any Person other
than a Consolidated Company, of any
property or asset (including Capital Stock
but excluding the issuance and sale
3
<PAGE>
by Borrower of its own Capital Stock),
other than sales or other dispositions
made in the ordinary course of business of
any Consolidated Company.
"Asset
Securitization" shall mean the asset securitization program
entered
into by the Receivable Subsidiaries and
Three Pillars Funding Corporation;
provided that the outstanding attributed
principal amount of such program shall
not at any time exceed $175,000,000.
"Asset
Securitization Agreements" shall mean those documents which
govern
the Asset Securitization (as the same may
be amended, restated, supplemented or
otherwise modified from time to time as
permitted by this Agreement).
"Assignment and Acceptance" shall mean an assignment and
acceptance
entered into by a Lender and an Eligible
Assignee in accordance with the terms
of this Agreement and substantially in the
form of EXHIBIT G.
"Bankruptcy Code" shall mean The Bankruptcy Code of 1978, as
amended and
in effect from time to time (11 U.S.C.
Section 101 et seq.).
"Base
Rate" shall mean the higher of (with any change in the Base Rate
to
be effective as of the date of change of
either of the following rates):
(a) the rate
which the Administrative Agent so denominates and
sets from time to time to be its prime
lending rate, as in effect from time to
time, and
(b) the Federal
Funds Rate, as in effect from time to time, plus
one-half of one percent (0.50%) per
annum.
The
Administrative Agent's prime lending rate is a reference rate and
does
not necessarily represent the lowest or
best rate charged to customers; the
Administrative Agent may make commercial
loans or other loans at rates of
interest at, above or below the
Administrative Agent's prime lending rate.
"Base Rate
Advance" shall mean an Advance made or outstanding as (i) a
Syndicated Loan bearing interest based on
the Base Rate or (ii) an Advance
bearing interest at the rate agreed upon
between Borrower and the Lenders
pursuant to Section 3.07, Section 3.08 or
Section 3.09.
"Bond
Obligations" shall mean all obligations of the Consolidated
Companies arising under or pursuant to that
certain Lease Agreement (the
"Equipment Lease") dated as of December 1,
2001, by and between Development
Authority of Fulton County, as lessor of
certain equipment described therein
(the "Lessor"), and Borrower, as lessee of
such equipment (in such capacity, the
"Lessee"), and all other instruments,
documents, and agreements relating to such
lease or that certain $30,000,000
Development Authority of Fulton County Taxable
Industrial Development Revenue Bond
(ChoicePoint Inc. Project), Equipment Series
(the "Bond"), including, without
limitation, that certain Bond Guaranty
Agreement dated as of December 31, 2001,
issued by Borrower, in its capacity as
guarantor (in such capacity, the
4
<PAGE>
"Bond Guarantor") in favor of Borrower, in
its capacity as purchaser of the Bond
(the "Bond Purchaser") pursuant to which
the Bond Guarantor unconditionally
guaranteed payment and performance of the
debt service on the Bond for the
benefit of the Bond Purchaser (the Bond
Purchaser having financed the
acquisition by the Lessor of the equipment
which was leased to the Lessee), and,
since Borrower is the Lessee, the Bond
Purchaser and the Bond Guarantor, the
Bond Obligations are not required to be
classified as a liability of Borrower in
accordance with GAAP.
"Borrower" shall
mean ChoicePoint Inc., a Georgia corporation, and its
successors.
"Borrowing" shall mean the incurrence by Borrower under any
Facility of
Advances of one Type concurrently having
the same Interest Period or the
continuation or conversion of an existing
Borrowing or Borrowings in whole or in
part.
"Business
Day" shall mean any day which is neither a Saturday or Sunday
nor a legal holiday on which banks are
required or authorized to close in
Charlotte, North Carolina and New York, New
York.
"Capital
Stock" shall mean, with respect to any Person, all capital
stock
of such Person, whether voting or
nonvoting, including common stock and
preferred stock of such Person.
"Change in
Control Provision" shall mean any term or provision contained
in any indenture, debenture, note, or other
agreement or document evidencing or
governing Indebtedness of Borrower
evidencing debt or a commitment to extend
loans in excess of $5,000,000 which
requires, or permits the holder(s) of such
Indebtedness of Borrower to require that
such Indebtedness of Borrower be
redeemed, repurchased, defeased, prepaid or
repaid, either in whole or in part,
or the maturity of such Indebtedness of
Borrower to be accelerated in any
respect, as a result of a change in
ownership of the Capital Stock of Borrower
or voting rights with respect thereto.
"Closing
Date" shall mean the date of this Agreement or such later
Business Day upon which the conditions set
forth in Section 4.01 are satisfied
or waived in accordance with Section
10.02.
"Commitment" shall mean (i) for any Syndicated Lender at any time,
its
Syndicated Loan Commitment, (ii) for the
Swing Line Lender at any time, its
Swing Line Commitment, and (iii) for the
Issuing Lender at any time, its L/C
Commitment, in each case as the context may
require.
"Compliance Certificate" shall have the meaning set forth in
Section
6.07(c).
"Consolidated Companies" shall mean, collectively, Borrower and all
of its
Subsidiaries other than the Receivables
Subsidiaries.
"Consolidated EBIT" shall mean, for any fiscal period of Borrower,
an
amount equal to (A) the sum for such fiscal
period of Consolidated Net Income
(Loss) and, to the extent deducted in
determining such Consolidated Net Income
(Loss), provisions for (i) taxes based on
income
5
<PAGE>
and (ii) Consolidated Interest Expense,
minus (B) any items of gain (or plus any
items of loss) which were included in
determining such Consolidated Net Income
(Loss) and were (x) not realized in the
ordinary course of business (whether or
not classified as "ordinary" by GAAP), (y)
the result of any sale of assets, or
(z) resulting from minority investments,
together in the case of (x), (y) or
(z), any related provision for taxes
included in Consolidated Net Income (Loss)
with respect thereto, plus (C)
non-recurring non-cash charges, including without
limitation, accruals related to any
acquisition and earnouts incurred in
connection with any acquisition to the
extent not paid in cash. For purposes of
this Agreement, Consolidated EBIT shall be
adjusted on a pro forma basis, in a
manner reasonably acceptable to the
Administrative Agent, to include, as of the
first day of any applicable period, any
acquisition closed during such period,
including, without limitation, adjustments
reflecting any non-recurring costs
and any extraordinary expenses of any
acquisition closed during such period
calculated on a basis consistent with GAAP
and Regulation S-X of the Securities
Exchange Act of 1934, as amended, or as
approved by the Administrative Agent.
"Consolidated EBITDA" shall mean, for any four fiscal-quarter
period of
Borrower, an amount equal to the sum of (A)
Consolidated EBIT plus (B)
depreciation and amortization expense to
the extent deducted in determining
Consolidated Net Income (Loss), plus (C)
without duplication, the sum of the
following items to the extent not included
in Consolidated EBITDA for such
period:
(1) the net
income (or net loss) for such four fiscal-quarter
period of any Person which became a
Subsidiary during such period (a "New
Subsidiary");
(2) the net
income (or net loss) derived during such four
fiscal-quarter period from any assets
acquired by any Consolidated Company
during such period ("New Assets");
(3) the sum of
(x) taxes based on income, (y) Consolidated
Interest Expense and (z) depreciation and
amortization expense, in each case to
the extent deducted in determining net
income of any New Subsidiary or derived
from any New Assets during such four
fiscal-quarter period, minus any items of
gain (or plus any items of loss) which were
included in determining such net
income and were (aa) not realized in the
ordinary course of business (whether or
not classified as "ordinary" by GAAP), (bb)
the result of any sale of assets, or
(cc) resulting from minority investments,
together in the case of (aa), (bb) or
(cc), any related provision for taxes
included in such net income with respect
thereto; and
(4)
non-recurring non-cash charges of any New Subsidiary or
derived from any New Assets during such
four fiscal-quarter period, including
without limitation, accruals related to any
acquisition and earnouts incurred in
connection with any acquisition to the
extent not paid in cash.
"Consolidated Interest Expense" shall mean, for any fiscal period
of
Borrower, total interest expense of the
Consolidated Companies and the
Receivables Subsidiaries (including,
without limitation, interest expense
attributable to capitalized leases, all net
payment obligations pursuant to swap
agreements (as defined in 11 U.S.C. Section
101), all commissions, discounts and
other fees and charges owed with respect to
bankers acceptance financing, and
total interest
6
<PAGE>
expense (whether shown as interest expense
or as loss and expenses on sale of
receivables) under a receivables purchase
facility (including, without
limitation, the Asset Securitization))
determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Income (Loss)" shall mean, for any fiscal period
of
Borrower, the net income (or loss) of the
Consolidated Companies and the
Receivables Subsidiaries for such period
(taken as a single accounting period),
but excluding therefrom (to the extent
otherwise included therein) the income of
any Consolidated Company or any Receivables
Subsidiary to the extent that the
declaration or payment of dividends or
similar distributions by such
Consolidated Company or Receivables
Subsidiary of that income is not at the time
permitted by operation of the terms of its
charter or any agreement, instrument,
judgment, decree, order, statute, rule or
governmental regulation.
"Consolidated Net Worth" shall mean, without duplication, as of any
date
of determination, shareholders' equity of
the Consolidated Companies, determined
on a consolidated basis in conformity with
GAAP.
"Contractual Obligation" of any Person shall mean any provision of
any
security issued by such Person or of any
agreement, instrument or undertaking
under which such Person is obligated or by
which it or any of the property owned
by it is bound.
"Credit
Documents" shall mean, collectively, this Agreement, the Notes,
the Applications, the Guaranty Agreements,
and all other documents, instruments,
certificates and opinions executed and
delivered in connection with the
foregoing.
"Credit
Parties" shall mean, collectively, each of Borrower, the
Guarantors, and every other Person who from
time to time executes a supplement
to the Guaranty Agreements with respect to
all or any portion of the
Obligations.
"Default"
shall mean any condition or event which, with notice or lapse
of
time or both, would constitute an Event of
Default.
"Defaulting Lender" shall mean any Lender that (a) has failed to
fund any
portion of the Syndicated Loans,
participations in L/C Obligations or
participations in Swing Line Loans required
to be funded by it hereunder within
one Business Day of the date required to be
funded by it hereunder, (b) has
otherwise failed to pay over to the
Administrative Agent or any other Lender any
other amount required to be paid by it
hereunder within one Business Day of the
date when due, unless such amount is the
subject of a good faith dispute, or (c)
has been deemed insolvent or become the
subject of a bankruptcy or insolvency
proceeding.
"Dollar"
and "U.S. Dollar" and the sign "$" shall mean lawful money of
the
United States of America.
"Dollar
Amount" shall mean, at any time, (a) with respect to any amount
denominated in Dollars, such amount and (b)
with respect to any amount
denominated in any Alternative Currency,
the equivalent amount thereof in
Dollars at the most favorable spot exchange
rate for
7
<PAGE>
the purchase of Dollars with such
Alternative Currency, as determined by the
Administrative Agent or the Issuing Lender,
as applicable, at approximately
11:00 a.m. (the time of the Administrative
Agent's Correspondent) two (2)
Business Days prior to the date on which
the foreign exchange computation is
made.
"Eligible
Assignee" shall mean any of the following (i) a commercial bank
organized under the laws of the United
States, or any State thereof, and having
total assets in excess of $100,000,000;
(ii) a savings and loan association or
savings bank organized under the laws of
the United States, or any State
thereof, and having total assets in excess
of $100,000,000; (iii) a commercial
bank organized under the laws of any other
country having total assets in excess
of $100,000,000, provided that such bank is
acting through a branch or agency
located in the United States; (iv) a
finance company, insurance company or other
financial institution, lender or fund
(whether a corporation, partnership or
other entity) which is engaged in making,
purchasing or otherwise investing in
commercial loans in the ordinary course of
its business, and having total assets
in excess of at least $100,000,000; (v) any
Lender or any Affiliate of any
Lender; or (vi) any other Person consented
to by Borrower and the Administrative
Agent, such consent not unreasonably to be
withheld.
"EMU"
shall mean economic and monetary union as contemplated in the
Treaty
on European Union.
"EMU
Legislation" shall mean legislative measures of the Council of
European Union for the introduction of,
change over to or operation of the Euro.
"Environmental Laws" shall mean all federal, state, local and
foreign
statutes and codes or regulations, rules or
ordinances issued, promulgated, or
approved thereunder, now or hereafter in
effect (including, without limitation,
those with respect to asbestos or asbestos
containing material or exposure to
asbestos or asbestos containing material),
relating to pollution or protection
of the environment and relating to public
health and safety, relating to (i)
emissions, discharges, releases or
threatened releases of pollutants,
contaminants, chemicals or industrial toxic
or hazardous constituents,
substances or wastes, including without
limitation, any Hazardous Substance,
petroleum including crude oil or any
fraction thereof, any petroleum product or
other waste, chemicals or substances
regulated by any Environmental Law into the
environment (including without limitation,
ambient air, surface water, ground
water, land surface or subsurface strata),
or (ii) the manufacture, processing,
distribution, use, generation, treatment,
storage, disposal, transport or
handling of any Hazardous Substance,
petroleum including crude oil or any
fraction thereof, any petroleum product or
other waste, chemicals or substances
regulated by any Environmental Law, and
(iii) underground storage tanks and
related piping, and emissions, discharges
and releases or threatened releases
therefrom, such Environmental Laws to
include, without limitation (i) the Clean
Air Act (42 U.S.C. Section 7401 et seq.),
(ii) the Clean Water Act (33 U.S.C.
Section 1251 et seq.), (iii) the Resource
Conservation and Recovery Act (42
U.S.C. Section 6901 et seq.), (iv) the
Toxic Substances Control Act (15 U.S.C.
Section 2601 et seq.), (v) the
Comprehensive Environmental Response Compensation
and Liability Act, as amended by the
Superfund Amendments and Reauthorization
Act (42 U.S.C. Section 9601 et seq.), and
(vi) all applicable national and local
laws or regulations with respect to
environmental control (including applicable
laws of the Federal Republic of Germany or
any applicable international
agreements).
8
<PAGE>
"ERISA"
shall mean the Employee Retirement Income Security Act of 1974,
as
amended and in effect from time to
time.
"ERISA
Affiliate" shall mean, with respect to any Person, each trade
or
business (whether or not incorporated)
which is a member of a group of which
that Person is a member and which is under
common control within the meaning of
the regulations promulgated under Section
414 of the Tax Code.
"Euro"
shall mean the single currency to which the Participating
Member
States of the EMU have converted.
"Eurodollar Advance" shall mean an Advance made or outstanding as
a
Syndicated Loan bearing interest based on
LIBOR.
"Eurodollar Business Day" shall mean a Business Day (a) on which
trading
is carried on by and between banks in
deposits for the applicable Permitted
Currency in the London interbank market and
(b) on which banks are open for the
conduct of their domestic and international
banking business in the place where
the Administrative Agent or the
Administrative Agent's Correspondent shall make
available Loans in such Permitted Currency.
Notwithstanding the foregoing, with
respect to any amount denominated or to be
denominated in the Euro, any
reference to a "Business Day" shall be
construed as a reference to a TARGET Day.
"Eurodollar Reserve Percentage" shall mean, for any Lender which is
a
member bank of the Federal Reserve System
and with respect to any Eurodollar
Advance denominated in Dollars, on any day
that percentage (expressed as a
decimal) which is in effect on such day, as
prescribed by the Board of Governors
of the Federal Reserve System (or any
successor) for determining the reserve
requirement for such Lender in respect of
"Eurocurrency liabilities" (or in
respect of any other category of
liabilities which includes deposits by
reference to which the interest rate on
Eurodollar Advances is determined or any
category of extensions of credit or other
assets which includes loans by a
non-United States office of any Lender to
United States residents).
"Event of
Default" shall have the meaning provided in Article VIII.
"Exchange
Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time, and any successor
statute thereto.
"Executive
Officer" shall mean, with respect to any Person, Chief
Executive Officer, President, Chief
Operating Officer, Chief Financial Officer,
the General Counsel, the Treasurer, any
Assistant Treasurer and any Person
holding comparable offices or duties.
"Existing
Credit Agreement" shall mean that certain Revolving Credit
Agreement dated as of May 10, 2002, by and
among Borrower, the lenders party
thereto, SunTrust Bank, as administrative
agent, and Wachovia Bank, National
Association, as syndication agent, as
amended as of the date hereof.
9
<PAGE>
"Existing
Letters of Credit" shall mean all letters of credit identified
on Schedule 1.1(b).
"Facility"
or "Facilities" shall mean the credit facilities made available
to Borrower pursuant to the Syndicated Loan
Commitments, the Swing Line
Commitment, and the L/C Facility, as the
context may indicate.
"Facility
Fee" shall have the meaning assigned to such term in Section
3.04.
"Federal
Funds Rate" shall mean, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of
1%) representing the daily effective
federal funds rate as quoted by the
Administrative Agent and confirmed in
Federal Reserve Board Statistical Release
H.15 (519) or any successor or
substitute publication selected by the
Administrative Agent. If, for any reason,
such rate is not available, then "Federal
Funds Rate" shall mean a daily rate
which is determined, in the opinion of the
Administrative Agent, to be the rate
at which federal funds are being offered
for sale in the national federal funds
market at 9:00 a.m. (Charlotte time). Rates
for weekends or holidays shall be
the same as the rate for the most
immediately preceding Business Day.
"Foreign
Plan" shall mean any pension, profit sharing, deferred
compensation, or other employee benefit
plan, program or arrangement maintained
by any Foreign Subsidiary which, under
applicable local law, is required to be
funded through a trust or other funding
vehicle, but shall not include any
benefit provided by a foreign government or
its agencies.
"Foreign
Subsidiary" shall mean each Consolidated Company that is
organized under the laws of a jurisdiction
other than the United States of
America or any State thereof.
"Funded
Debt" shall mean all Indebtedness for money borrowed,
Indebtedness
evidenced or secured by purchase money
Liens, capitalized leases, outstandings
under asset securitization vehicles,
conditional sales contracts and similar
title retention debt instruments, including
any current maturities of the
foregoing, which by its terms matures more
than one year from the date of any
calculation thereof or which is renewable
or extendable at the option of the
obligor to a date beyond one year from such
date. The calculation of Funded Debt
shall include (i) all Funded Debt of the
Consolidated Companies and the
Receivables Subsidiaries, plus (ii) all
Funded Debt of other Persons to the
extent guaranteed by a Consolidated Company
or a Receivables Subsidiary, to the
extent supported by a letter of credit
issued for the account of a Consolidated
Company or a Receivables Subsidiary, or as
to which and to the extent which a
Consolidated Company or a Receivables
Subsidiary or their respective assets
otherwise have become liable for payment
thereof, plus (iii) the redemption
amount with respect to the stock of
Borrower required to be redeemed during the
next succeeding twelve months at the option
of the holder or its Subsidiaries.
Notwithstanding the foregoing, "Funded
Debt" shall exclude (x) the Lease
Obligations, in an aggregate amount not to
exceed $73,000,000 (but Lease
Obligations in excess of $73,000,000 shall
be included in "Funded Debt"), and
(y) all operating lease obligations.
"GAAP"
shall mean generally accepted accounting principles set forth
in
the opinions and pronouncements of the
Accounting Principles Board of the
American Institute of Certified Public
Accountants and statements and
pronouncements of the Financial Accounting
Standards Board or in such other
statements by such other entity as may be
approved by a significant
10
<PAGE>
segment of the accounting profession, which
are applicable to the circumstances
as of the date of determination.
"Guarantors" shall mean, collectively, all Material Subsidiaries
in
existence on the Closing Date and listed on
Schedule 5.13, and all other
Material Subsidiaries formed, acquired or
existing after the Closing Date, but
excluding all Foreign Subsidiaries and
those Guarantors released from the
Guaranty Agreements pursuant to Section
10.13 or otherwise.
"Guaranty"
shall mean any contractual obligation, contingent or otherwise,
of a Person with respect to any
Indebtedness or other obligation or liability of
another Person, including without
limitation, any such Indebtedness, obligation
or liability directly or indirectly
guaranteed, endorsed, co-made or discounted
or sold with recourse by that Person, or in
respect of which that Person is
otherwise directly or indirectly liable,
including contractual obligations
(contingent or otherwise) arising through
any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness,
obligation or liability or any security
therefor, or any agreement to provide funds
for the payment or discharge thereof
(whether in the form of loans, advances,
stock purchases, capital contributions
or otherwise), or to maintain solvency,
assets, level of income, or other
financial condition, or to make any payment
other than for value received. The
amount of any Guaranty shall be deemed to
be an amount equal to the stated or
determinable amount of the primary
obligation in respect of which guaranty is
made or, if not so stated or determinable,
the maximum reasonably anticipated
liability in respect thereof (assuming such
Person is required to perform
thereunder) as determined by such Person in
good faith.
"Guaranty
Agreements" shall mean, collectively, (i) the Guaranty
Agreement, dated as of even date herewith,
executed by each of the Guarantors in
favor of the Lenders and the Administrative
Agent, substantially in the form of
EXHIBIT C, as the same may be amended,
restated or supplemented from time to
time and (ii) the Contribution Agreement,
dated as of even date herewith,
executed by each of the Guarantors and
Borrower in favor of the Lenders and the
Administrative Agent, substantially in the
form of EXHIBIT D, as the same may be
amended, restated or supplemented from time
to time.
"Hazardous
Substances" shall have the meaning assigned to that term in the
Comprehensive Environmental Response
Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and
Reauthorization Act of 1986.
"Indebtedness" of any Person shall mean, without duplication (i)
all
obligations of such Person for borrowed
money and for the deferred purchase
price of property or services, and
obligations evidenced by bonds, debentures,
notes or other similar instruments; (ii)
all rental obligations under leases
required to be capitalized under GAAP;
(iii) all Guaranties of such Person; (iv)
all obligations, contingent or otherwise,
of such Person relative to the face
amount of letters of credit, whether or not
drawn, including, without limitation
(but without duplication), any
Reimbursement Obligations, and banker's
acceptances issued for the account of such
Person; (v) Indebtedness of others
secured by any Lien upon property owned by
such Person, whether or not assumed;
(vi) obligations or other liabilities under
currency contracts, interest rate
hedging contracts, or similar agreements or
combinations thereof to the extent
required to be disclosed in such Person's
financial statements in accordance
with GAAP; (vii) the Lease
11
<PAGE>
Obligations and (viii) the outstanding
attributed principal amount under the
Asset Securitization or similar financing.
Notwithstanding the foregoing,
"Indebtedness" shall exclude the Bond
Obligations to the extent not required to
be classified as a liability in accordance
with GAAP.
"Interest
Period" shall mean as to any Eurodollar Advances, the interest
period selected by Borrower pursuant to
Section 3.03(a).
"Investment" shall mean, when used with respect to any Person, any
direct
or indirect advance, loan or other
extension of credit (other than the creation
of receivables in the ordinary course of
business) or capital contribution by
such Person (by means of transfers of
property to others or payments for
property or services for the account or use
of others, or otherwise) to any
Person, or any direct or indirect purchase
or other acquisition by such Person
of, or of a beneficial interest in, Capital
Stock, partnership interests, bonds,
notes, debentures or other securities
issued by any other Person. Each
Investment shall be valued as of the date
made; provided that any Investment or
portion of an Investment consisting of Debt
shall be valued at the outstanding
principal balance thereof as of the date of
determination.
"ISP98"
shall mean the International Standby Practices (1998 Revision,
effective January 1, 1999), International
Chamber of Commerce Publication No.
590.
"Issuing
Lender" shall mean (a) with respect to the Existing Letters of
Credit, SunTrust Bank, in its capacity as
issuer thereof, and (b) with respect
to all Letters of Credit issued hereunder,
Wachovia, in its capacity as issuer,
and any successor thereto.
"L/C
Commitment" shall mean the lesser of (a) $25,000,000 and (b)
the
total Syndicated Loan Commitments.
"L/C
Facility" shall mean the letter of credit facility established
pursuant to Article IIA hereof.
"L/C
Obligations" shall mean at any time, an amount equal to the sum
of
(a) the aggregate undrawn and unexpired
amount of the then outstanding Letters
of Credit and (b) the aggregate amount of
drawings under Letters of Credit which
have not then been reimbursed pursuant to
Section 2A.05.
"L/C
Participants" shall mean the collective reference to all the
Lenders
other than the Issuing Lender.
"Lease
Documents" shall mean, collectively, (i) that certain Lease
Agreement, dated as of July 31, 1997, by
and between Borrower, as lessee, and
SunTrust Banks, Inc., as lessor, pursuant
to which Borrower has leased its
office building located at 1000 Alderman
Drive, Alpharetta, Georgia 30005, (ii)
that certain Master Agreement, dated as of
July 31, 1997, by and among Borrower
as lessee, SunTrust Banks, Inc., as lessor
and SunTrust Bank, Atlanta, as Agent,
(iii) that certain Lease Agreement, dated
as of August 29, 2001, by and between
Borrower and certain of its Subsidiaries,
as lessees, and Atlantic Financial
Group, Ltd., as lessor, as amended and
restated by that certain Amended and
Restated Master Lease Agreement, dated
12
<PAGE>
as of June 26, 2003, by and between
Borrower, as lessee and SunTrust Equity
Funding, LLC, as lessor, pursuant to which
Borrower has leased certain real
property located at 1100 Alderman Drive,
Alpharetta, GA 30005, (iv) that certain
Master Agreement, dated as of August 29,
2001, by and among Borrower and certain
of its Subsidiaries, as lessees, Borrower,
as guarantor, Atlantic Financial
Group, Ltd., as lessor, and SunTrust Bank,
as Agent, as amended and restated by
that certain Amended and Restated Master
Agreement, dated as of June 26, 2003,
by and among Borrower as lessee, SunTrust
Equity Funding, LLC, as lessor and
SunTrust Bank, as Agent, (v) Lease
Agreement by the Development Authority of
Fulton County, as lessor, and Atlantic
Financial Group, Ltd., as lessee, dated
as of December 1, 2001, wherein, in
connection with a Development Authority of
Fulton County Taxable Industrial
Development Revenue Bond (ChoicePoint Inc.
Project), Building Series, which bond is in
the maximum principal amount of
$52,200,000, the property subject to the
Master Agreement and the Lease
Agreement described in clauses (iii) and
(iv) was transferred by Atlantic
Financial Group, Ltd. to Development
Authority of Fulton County, leased back by
Atlantic Financial Group, Ltd. and
subleased by Borrower from Atlantic Financial
Group, Ltd., still subject to such Master
Agreement and the terms contained in
such Lease Agreement and (vi) all other
documents, instruments and agreements
executed in connection therewith (as the
same may be amended, restated,
supplemented or otherwise modified from
time to time as permitted by this
Agreement).
"Lease
Obligations" shall mean the obligations of Borrower under the
Lease
Documents in an aggregate amount not to
exceed $73,000,000, as such amount may
be increased pursuant to Section 7.12.
"Lender"
or "Lenders" shall mean Wachovia, SunTrust Bank and the other
banks and lending institutions listed on
the signature pages hereof, each other
bank or financial institution which becomes
a Lender hereunder pursuant to
Section 2.05(c), and each assignee thereof,
if any, pursuant to Section
10.06(c).
"Lending
Office" shall mean for each Lender the office such Lender may
designate in writing from time to time to
Borrower and the Administrative Agent
with respect to each Type of Loan.
"Letters
of Credit" shall have the meaning assigned thereto in Section
2A.01 and shall include the Existing
Letters of Credit.
"LIBOR"
shall mean, for any Interest Period, with respect to Eurodollar
Advances under the Syndicated Loan
Commitments, the offered rate for deposits in
the Permitted Currency in which such
Eurodollar Advance is to be made, for a
period comparable to the Interest Period
and in an amount comparable to the
Administrative Agent's portion of such
Advances, appearing on Telerate Page 3750
(or the applicable Reuters Screen Page, as
determined by the Administrative
Agent) as of 11:00 a.m. (London, England
time) on the day that is two Eurodollar
Business Days prior to the first day of the
Interest Period. If two or more of
such rates appear on such Telerate Page,
the rate shall be the arithmetic mean
of such rates. If the foregoing rate is
unavailable from Telerate for any
reason, then such rate shall be determined
by the Administrative Agent from the
Reuters Screen LIBO Page or, if such rate
is also unavailable on such service,
then on any other interest rate reporting
service of recognized standing
designated in writing by the
Administrative
13
<PAGE>
Agent to Borrower and the other Lenders; in
any such case rounded, if necessary,
to the next higher 1/100th of 1%, if the
rate is not such a multiple.
"Lien"
shall mean any mortgage, pledge, security interest, lien,
charge,
hypothecation, assignment, deposit
arrangement, title retention, preferential
property right, trust or other arrangement
having the practical effect of the
foregoing and shall include the interest of
a vendor or lessor under any
conditional sale agreement, capitalized
lease or other title retention
agreement.
"Loans"
shall mean, collectively, the Syndicated Loans and the Swing
Line
Loans.
"Mandatory
Cost" shall mean the percentage rate per annum calculated by
the Administrative Agent in accordance with
Schedule 1.1(c).
"Margin
Regulations" shall mean Regulation T, Regulation U and
Regulation
X of the Board of Governors of the Federal
Reserve System, as the same may be in
effect from time to time.
"Margin
Stock" shall have the meaning set forth in the Margin
Regulations.
"Materially Adverse Effect" shall mean any materially adverse
change in
(i) the business, assets, liabilities,
financial condition or results of
operations of the Consolidated Companies,
taken as a whole, (ii) the ability of
Borrower to perform its obligations under
this Agreement, or (iii) the ability
of the other Credit Parties (taken as a
whole) to perform their respective
obligations under the Credit Documents.
"Material
Subsidiary" shall mean each Subsidiary of Borrower, now
existing
or hereafter established or acquired, that
at any time prior to the Maturity
Date (i) has or acquires assets which
constitute fifteen percent (15%) or more
of the Total Assets or (ii) accounts for or
produces fifteen percent (15%) or
more of Consolidated EBITDA during any
period of four (4) consecutive fiscal
quarters of Borrower; provided, that
"Material Subsidiaries" (collectively with
Borrower) shall at all times constitute
more than seventy-five percent (75%) of
Consolidated EBITDA for any period of four
(4) consecutive fiscal quarters of
Borrower.
"Maturity
Date" shall mean the earlier of (i) December 29, 2009, and (ii)
the date on which all amounts outstanding
under this Agreement have been
declared or have automatically become due
and payable pursuant to the provisions
of Article VIII.
"Multiemployer Plan" shall have the meaning set forth in
Section
4001(a)(3) of ERISA.
"Notes"
shall mean, collectively, the Syndicated Notes and the Swing
Line
Note.
"Notice of
Account Designation" shall have the meaning provided in Section
3.01(a).
"Notice of
Borrowing" shall have the meaning provided in Section 2.06(a).
14
<PAGE>
"Notice of
Conversion/Continuation" shall have the meaning provided in
Section 2.06(b).
"Notice of
Prepayment" shall have the meaning provided in Section
3.05(a)(ii).
"Obligations" shall mean all amounts owing to the Administrative
Agent or
any Lender pursuant to the terms of this
Agreement or any other Credit Document,
including without limitation, all Loans
(including all principal and interest
payments due thereunder), L/C Obligations,
fees, expenses, indemnification and
reimbursement payments, indebtedness,
liabilities, and obligations of the Credit
Parties, direct or indirect, absolute or
contingent, liquidated or unliquidated,
now existing or hereafter arising, together
with all renewals, extensions,
modifications or refinancings thereof, and
all existing and future obligations
of Borrower under any swap agreement (as
defined in 11 U.S.C. Section 101) with
any Lender.
"Participant" shall have the meaning provided in Section
10.06(e).
"Participating Member State" shall mean each state so described in
any EMU
Legislation.
"Payment
Office" shall mean the office specified as the "Payment Office"
for the Administrative Agent on Schedule
1.1(a), or such other location as to
which the Administrative Agent shall have
given written notice to Borrower and
the Lenders.
"PBGC"
shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted
Currency" shall mean Dollars or any Alternative Currency, or
each such currency, as the context
requires.
"Permitted
Liens" shall mean those Liens expressly permitted by Section
7.01.
"Person"
shall mean any individual, limited liability company,
partnership, firm, corporation,
association, joint venture, trust or other
entity, or any government or political
subdivision or agency, department or
instrumentality thereof.
"Plan"
shall mean any "employee benefit plan" (as defined in Section
3(3)
of ERISA), including, but not limited to,
any defined benefit pension plan,
profit sharing plan, money purchase pension
plan, savings or thrift plan, stock
bonus plan, employee stock ownership plan,
Multiemployer Plan, or any plan,
fund, program, arrangement or practice
providing for medical (including
post-retirement medical), hospitalization,
accident, sickness, disability, or
life insurance benefits, but shall exclude
any Foreign Plan.
"Pounds
Sterling" shall mean, at any time of determination, the then
official currency of the United Kingdom of
Great Britain and Northern Ireland.
"Pro Rata
Share" shall mean, with respect to each of the Syndicated Loan
Commitments of each Syndicated Lender and
each Syndicated Loan to be made by and
each payment (including, without
limitation, any payment of principal, interest
or fees) to be made to each such
15
<PAGE>
Lender, the percentage designated as such
Lender's Pro Rata Share of such
Commitments, such Loans or such payments,
as applicable, set forth on Schedule
1.1(a), as such percentage may change based
upon amendments, assignments or
reductions made pursuant to this
Agreement.
"Receivables Subsidiaries" shall mean, collectively, ChoicePoint
Capital,
Inc., a Delaware corporation and
ChoicePoint Financial, Inc., a Delaware
corporation.
"Regulation D" shall mean Regulation D of the Board of Governors of
the
Federal Reserve System, as the same may be
in effect from time to time.
"Reimbursement Obligation" shall mean the obligation of Borrower
to
reimburse the Issuing Lender pursuant to
Section 2A.05 for amounts drawn under
Letters of Credit.
"Required
Lenders" shall mean at any time prior to the termination of the
Syndicated Loan Commitments, Lenders
holding more than 50% of the then aggregate
amount of the Syndicated Loan Commitments,
or, following the termination of the
Syndicated Loan Commitments hereunder,
Lenders holding more than 50% of the sum
of the aggregate outstanding Dollar Amount
of Loans and L/C Obligations;
provided that the Commitment of, and the
portion of the Loans and L/C
Obligations of, as applicable, any
Defaulting Lender shall be excluded for
purposes of making a determination of
Required Lenders.
"Requirement of Law" for any person shall mean the articles or
certificate
of incorporation and by-laws or other
organizational or governing documents of
such Person, and any law, treaty, rule or
regulation, or determination of an
arbitrator or a court or other governmental
authority, in each case applicable
to or binding upon such Person or any of
its property or to which such Person or
any of its property is subject.
"Reuters
Screen" shall mean, when used in connection with any designated
page and LIBOR, the display page so
designated on the Reuters Monitor Money
Rates Service (or such other page as may
replace that page on that service for
the purpose of displaying rates comparable
to LIBOR).
"Revaluation Date" shall mean (a) with respect to any Alternative
Currency
Loan, each of the following: (i) each date
of a borrowing of such Alternative
Currency Loan, (ii) each date of a
continuation of such Alternative Currency
Loan, and (iii) following the occurrence
and during the continuance of an Event
of Default, such additional dates as the
Administrative Agent shall determine or
the Required Lenders shall require; and (b)
with respect to any Alternative
Currency Letter of Credit, each of the
following: (i) each date of issuance of
such Alternative Currency Letter of Credit,
(ii) each date of an amendment of
such Alternative Currency Letter of Credit
having the effect of increasing the
amount thereof (solely with respect to the
increased amount), (iii) each date of
any payment by the Issuing Lender of any
drawing under any Alternative Currency
Letter of Credit, and (iv) following the
occurrence and during the continuance
of an Event of Default, such additional
dates as the Administrative Agent or the
Issuing Lender shall determine or the
Required Lenders shall require.
16
<PAGE>
"Solvent"
shall mean, as to Borrower or any Guarantor at any time, that
(i) each of the fair value and the present
fair saleable value of such Person's
assets (including any rights of subrogation
or contribution to which such Person
is entitled, under any of the Credit
Documents or otherwise) is greater than
such Person's debts and other liabilities
(including contingent, unmatured and
unliquidated debts and liabilities) and the
maximum estimated amount required to
pay such debts and liabilities as such
debts and liabilities mature or otherwise
become payable; (ii) such Person is able
and expects to be able to pay its debts
and other liabilities (including, without
limitation, contingent, unmatured and
unliquidated debts and liabilities) as they
mature; and (iii) such Person does
not have unreasonably small capital to
carry on its business as conducted and as
proposed to be conducted.
"Subsidiary" shall mean, with respect to any Person, any
corporation or
other entity (including, without
limitation, partnerships, joint ventures, and
associations) regardless of its
jurisdiction of organization or formation, at
least a majority of the total combined
voting power of all classes of voting
stock or other ownership interests of which
shall, at the time as of which any
determination is being made, be owned by
such Person, either directly or
indirectly through one or more other
Subsidiaries; provided, that the
Receivables Subsidiaries shall not be
deemed to be Subsidiaries of Borrower
hereunder.
"Swing
Line Advance" shall mean a Borrowing pursuant to Section 2.07
consisting of a Swing Line Loan made by the
Swing Line Lender to Borrower
bearing interest based on the Base Rate as
provided in Section 3.02.
"Swing
Line Borrowing" shall mean a Borrowing consisting or to consist
of
a Swing Line Advance.
"Swing
Line Commitment" shall mean the commitment of the Swing Line
Lender
to make Swing Line Loans in an aggregate
principal amount at any time
outstanding not to exceed the lesser of (a)
$25,000,000 and (b) the total
Syndicated Loan Commitments.
"Swing
Line Facility" shall mean the credit facility described in
Section
2.07.
"Swing
Line Lender" shall mean Wachovia in its capacity as Swing Line
Lender hereunder or any successor Lender
extending to Borrower the Swing Line
Commitment hereunder.
"Swing
Line Loans" shall mean, collectively, the loans made to Borrower
by
the Swing Line Lender pursuant to Section
2.07.
"Swing
Line Note" shall mean the promissory note evidencing the Swing
Line
Loans substantially in the form of EXHIBIT
B and duly completed in accordance
with the terms hereof.
"Syndicated Advance" shall mean a Borrowing pursuant to Section
2.02
consisting of the aggregate amount of
Syndicated Loans made by the Syndicated
Lenders to Borrower at the same time, on
the same interest rate basis and, if
made as a Eurodollar Advance, for the same
Interest Period.
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<PAGE>
"Syndicated Borrowing" shall mean a Borrowing consisting or to
consist of
a Syndicated Advance.
"Syndicated Facility" shall mean the credit facility made available
by the
Syndicated Lenders to Borrower as described
in Section 2.02(a).
"Syndicated Lenders" shall mean, collectively, the Lenders
extending the
Syndicated Loan Commitments to Borrower
pursuant to Section 2.02(a).
"Syndicated Loan Commitments" shall mean, at any time for any
Syndicated
Lender, the amount of such commitment set
forth on Schedule 1.1(a), as the same
may be increased or decreased from time to
time as a result of any reduction
thereof pursuant to Section 2.04, any
assignment thereof pursuant to Section
10.06, or any amendment thereof pursuant to
Section 10.02. On the Closing Date,
the aggregate principal amount of all
Syndicated Loan Commitments of the
Syndicated Lenders shall be
$400,000,000.
"Syndicated Loans" shall mean, collectively, the loans made to
Borrower by
the Syndicated Lenders pursuant to Section
2.02.
"Syndicated Notes" shall mean, collectively, the promissory
notes
evidencing the Syndicated Loans in the form
attached hereto as EXHIBIT A duly
completed in accordance with the terms
hereof, either as originally executed or
as hereafter amended, modified or
substituted.
"TARGET
Day" shall mean any day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer
(TARGET) payment system (or, if such
payment system ceases to be operative, such
other payment system (if any)
determined by the Administrative Agent to
be a suitable replacement) is open for
the settlement of payments in Euro.
"Tax Code"
shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Taxes"
shall mean any present or future taxes, levies, imposts,
duties,
fees, assessments, deductions, withholdings
or other charges of whatever nature,
including without limitation, income,
receipts, excise, property, sales,
transfer, license, payroll, withholding,
social security and franchise taxes now
or hereafter imposed or levied by the
United States, or any state, local or
foreign government or by any department,
agency or other political subdivision
or taxing authority thereof or therein and
all interest, penalties, additions to
tax and similar liabilities with respect
thereto.
"Telerate"
shall mean, when used in connection with any designated page
and LIBOR, the display page so designated
on the Dow Jones Markets Screen (or
such other page as may replace that page on
that service for the purpose of
displaying rates comparable to LIBOR).
"Total
Assets" shall mean the total assets of the Consolidated
Companies,
determined in accordance with GAAP.
18
<PAGE>
"Treaty on
European Union" shall mean the Treaty of Rome of March 25,
1957, as amended by the Single European Act
of 1986 and the Maastricht Treaty
(signed February 7, 1992), as amended from
time to time.
"Type" of
Borrowing shall mean a Borrowing consisting of Base Rate
Advances, Eurodollar Advances, or Swing
Line Advances.
"Uniform
Customs" shall mean the Uniform Customs and Practice for
Documentary Credits (1993 Revision),
effective January 1994 International
Chamber of Commerce Publication No.
500.
SECTION
1.02. ACCOUNTING TERMS AND DETERMINATION. Unless otherwise
defined
or specified herein, all accounting terms
shall be construed herein, all
accounting determinations hereunder shall
be made, all financial statements
required to be delivered hereunder shall be
prepared, and all financial records
shall be maintained in accordance with,
GAAP, except that financial records of
Foreign Subsidiaries may be maintained in
accordance with generally accepted
accounting principles in effect from time
to time in the jurisdiction of
organization of such Foreign Subsidiary;
provided, however, that compliance with
the financial covenants and calculations
set forth in Section 6.08, Article VII
and elsewhere herein, and in the
definitions used in such covenants and
calculations, shall be calculated, made and
applied in accordance with GAAP and
such generally accepted accounting
principles in such foreign jurisdictions, as
the case may be, as in effect on the date
of this Agreement applied on a basis
consistent with the preparation of the
financial statements referred to in
Section 5.14 unless and until Borrower and
the Required Lenders enter into an
amendment with respect thereto in
accordance with Section 10.02.
SECTION
1.03. OTHER DEFINITIONAL TERMS. The words "hereof", "herein"
and
"hereunder" and words of similar import
when used in this Agreement shall refer
to this Agreement as a whole and not to any
particular provision of this
Agreement, and Article, Section, Schedule,
Exhibit and like references are to
this Agreement unless otherwise specified.
Any of the terms defined in Section
1.01 may, unless the context otherwise
requires, be used in the singular or the
plural depending on the reference.
SECTION
1.04. EXHIBITS AND SCHEDULES. All Exhibits and Schedules
attached
hereto are by reference made a part
hereof.
ARTICLE II.
SYNDICATED LOANS AND SWING LINE LOANS
SECTION 2.01. DESCRIPTION OF
REVOLVING CREDIT FACILITIES; USE OF PROCEEDS.
(a)
Subject to and
upon the terms and conditions herein set forth, (i)
the Syndicated Lenders hereby establish in
favor of Borrower a revolving credit
facility pursuant to which such Syndicated
Lenders agree to make Syndicated
Loans to Borrower in accordance with
Section
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2.02, (ii) the Issuing Lender hereby
establishes in favor of Borrower a letter
of credit facility pursuant to which the
Issuing Lender agrees to issue Letters
of Credit on behalf of Borrower in
accordance with Article IIA hereof, and (iii)
the Swing Line Lender hereby establishes in
favor of Borrower a swing line
credit facility pursuant to which the Swing
Line Lender agrees to make Swing
Line Loans to Borrower in accordance with
Section 2.07; provided, however, that
(i) in no event may the aggregate principal
Dollar Amount of all outstanding
Loans and L/C Obligations exceed at any
time the total Syndicated Loan
Commitments from time to time in effect,
(ii) in no event may the aggregate
principal Dollar Amount of all outstanding
Alternative Currency Loans and L/C
Obligations with respect to Alternative
Currency Letters of Credit exceed at any
time the Alternative Currency Commitment
and (iii) in no event may the aggregate
outstanding principal Dollar Amount of the
Syndicated Loans of each Syndicated
Lender plus such Syndicated Lender's Pro
Rata Share of the outstanding principal
Dollar Amount of Swing Line Loans and
outstanding L/C Obligations exceed such
Syndicated Lender's Syndicated Loan
Commitment.
(b)
The proceeds of
the Syndicated Loans, the Letters of Credit and the
Swing Line Loans shall be used to refinance
existing indebtedness of Borrower
under the Existing Credit Agreement, as
working capital and for other general
corporate purposes of Borrower and its
Consolidated Subsidiaries, including
without limitation, capital expenditures in
the ordinary course of business
otherwise permitted hereunder, acquisitions
of the assets of, or the Capital
Stock of, any other Person permitted
hereunder and the payment of reasonable
fees and expenses related to the
Facilities.
(c)
At no time shall
the number of outstanding Borrowings comprised of
Eurodollar Advances exceed ten (10).
SECTION
2.02. SYNDICATED LOANS.
(a)
Subject to and
upon the terms and conditions herein set forth
(including the limitation set forth in
Section 2.01), each Syndicated Lender
severally agrees to make to Borrower, from
time to time on and after the Closing
Date, but prior to the Maturity Date,
Syndicated Loans in a Permitted Currency
in an aggregate principal Dollar Amount
outstanding at any time not to exceed an
amount equal to such Syndicated Lender's
Syndicated Loan Commitment less such
Syndicated Lender's Pro Rata Share of the
outstanding principal Dollar Amount of
Swing Line Loans and outstanding L/C
Obligations. Borrower shall be entitled to
repay and reborrow Syndicated Loans in
accordance with the provisions, and
subject to the limitations, set forth
herein (including the limitation set forth
in Section 2.01).
(b)
Each Syndicated
Loan shall, at the option of Borrower, be made or
continued as, or converted into, part of
one or more Borrowings that shall
consist entirely of Base Rate Advances or
Eurodollar Advances; provided that all
Alternative Currency Loans shall be made as
Eurodollar Advances only. The
aggregate principal amount of each
Borrowing of Syndicated Loans shall be not
less than $5,000,000 or a greater integral
multiple of $500,000 (or, in each
case, the Alternative Currency Amount
thereof), provided that each Borrowing of
Syndicated Loans comprised of Base Rate
Advances shall be not less than
$1,000,000 or a greater integral multiple
of $100,000.
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SECTION
2.03. SYNDICATED NOTES; REPAYMENT OF PRINCIPAL.
(a)
Borrower's
obligations to pay the principal of, and interest on, the
Syndicated Loans to each Syndicated Lender
shall be evidenced by the records of
the Administrative Agent and such Lender
and by the Syndicated Note payable to
such Lender (or the assignor of such
Lender) completed in conformity with this
Agreement.
(b)
All outstanding
principal amounts under the Syndicated Loan
Commitments shall be due and payable in
full on the Maturity Date.
SECTION
2.04. VOLUNTARY REDUCTION OF SYNDICATED LOAN COMMITMENTS. Upon
at
least three (3) Business Days' prior
written notice to the Administrative Agent,
Borrower shall have the right, without
premium or penalty, to terminate the
unutilized Syndicated Loan Commitments, in
part or in whole, provided that (i)
any such termination shall apply to
proportionately and permanently reduce the
Syndicated Loan Commitments of each of the
Syndicated Lenders, and (ii) any
partial termination pursuant to this
Section 2.04 shall be in an amount of at
least $5,000,000 and integral multiples of
$1,000,000. Any portion of the
Syndicated Loan Commitments terminated
pursuant to this Section 2.04 may not be
reinstated.
SECTION
2.05. INCREASE OF SYNDICATED LOAN COMMITMENTS.
(a)
At any time
within four (4) years of the Closing Date and so long as
no Default or Event of Default has occurred
and is continuing, the Borrower may,
by written notice to the Syndicated
Lenders, request increases in the Syndicated
Loan Commitments (each, a "Requested
Commitment Increase") up to an amount not
to exceed $500,000,000. Each Requested
Commitment Increase shall be in a minimum
amount of $25,000,000. No Syndicated Lender
(or any successor thereto) shall
have any obligation to increase its
Syndicated Loan Commitment or its other
obligations under this Agreement and the
other Credit Documents, and any
decision by a Syndicated Lender to increase
its Syndicated Loan Commitment shall
be made in its sole discretion
independently from any other Syndicated Lender.
Within fifteen (15) Business Days from each
Syndicated Lender's receipt of such
request from Borrower, each Syndicated
Lender shall notify the Administrative
Agent in writing of whether or not it will
agree to increase its Syndicated Loan
Commitment and by what amount it will agree
to increase its Syndicated Loan
Commitment, up to its Pro Rata Share of the
Requested Commitment Increase.
Decisions to increase a Syndicated Loan
Commitment must be affirmatively
communicated in writing and shall not be
presumed based upon a failure to
respond to Borrower's request.
(b)
In the event
that the aggregate amount to which the Syndicated
Lenders are willing to increase their
Syndicated Loan Commitments is less than
the Requested Commitment Increase based on
the written notices delivered by the
Syndicated Lenders to the Administrative
Agent pursuant to clause (a) above, the
Administrative Agent shall first offer to
the Syndicated Lenders who have agreed
to increase their Syndicated Loan
Commitments the opportunity to further
increase their Syndicated Loan Commitments
up to an amount equal to the
Requested Commitment Increase. Such
Syndicated Lenders shall promptly respond in
writing to the Administrative Agent (but,
in any event, within five (5) Business
Days from each Syndicated
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Lender's receipt of such notice) of whether
or not it will agree to further
increase its Syndicated Loan Commitment and
by what amount it will agree to
further increase its Syndicated Loan
Commitment. Within five (5) Business Days
after receipt of all responses from such
Syndicated Lenders, the Administrative
Agent shall inform Borrower and all
Syndicated Lenders in writing of the amount
by which each Syndicated Lender will
increase its Syndicated Loan Commitment.
(c)
In the event
that the aggregate amount to which the Syndicated
Lenders are willing to increase their
Syndicated Loan Commitments is less than
the Requested Commitment Increase based on
the notice from the Administrative
Agent to Borrower and all Syndicated
Lenders pursuant to clause (b) above,
Borrower shall have the right, within sixty
days (60) after receipt of such
notice from the Administrative Agent, to
obtain commitments from new banks or
financial institutions in an aggregate
amount such that the existing Syndicated
Loan Commitments, plus the aggregate
principal amount by which the Syndicated
Lenders are willing to increase their
Syndicated Loan Commitments, plus the
aggregate principal amount of the new
commitments by the new banks or financial
institutions does not exceed the Requested
Commitment Increase; provided,
however, that (i) the new banks or
financial institutions must be acceptable to
the Administrative Agent in its sole
discretion, which acceptance will not be
unreasonably withheld or delayed, and (ii)
the new banks or financial
institutions must become parties to this
Agreement pursuant to a joinder
agreement in form and substance
satisfactory to the Administrative Agent and the
Required Lenders, pursuant to which (x)
they shall be granted all of the rights
that existing Lenders have under this
Agreement and the other Credit Documents
and (y) they shall assume the same
liabilities and obligations that the existing
Lenders have under this Agreement.
(d)
The outstanding
Syndicated Loans will be reallocated on the
effective date of such increase among the
Syndicated Lenders in accordance with
their revised Syndicated Loan Commitments
and Pro Rata Shares (and the
Syndicated Lenders agree to make all
payments and adjustments necessary to
effect the reallocation and Borrower shall
pay any and all costs required
pursuant to Section 3.11 in connection with
such reallocation as if such
reallocation were a repayment; provided,
that the Administrative Agent and the
Borrower shall cooperate in scheduling the
effective date of such increase so as
to eliminate or minimize the amount of any
such funding losses to the extent
reasonably practicable).
SECTION
2.06. SYNDICATED LOAN FUNDING NOTICES.
(a)
Whenever
Borrower desires to obtain a Syndicated Loan with respect
to the Syndicated Loan Commitments (other
than one resulting from a conversion
or continuation pursuant to Section
2.06(b)), it shall give the Administrative
Agent prior written notice of such
Borrowing substantially in the form attached
hereto as EXHIBIT I (or telephonic notice
promptly confirmed in writing) (a
"Notice of Borrowing"), such Notice of
Borrowing to be given prior to 11:00 a.m.
(Charlotte, North Carolina time) at its
Payment Office (x) four (4) Eurodollar
Business Days prior to the requested date
of such Borrower in the case of
Eurodollar Advances denominated in an
Alternative Currency, (y) three (3)
Eurodollar Business Days prior to the
requested date of such Borrowing in the
case of Eurodollar Advances denominated in
Dollars, and (z) on the date of such
Borrowing (which shall be a Business Day)
in the case of a Borrowing consisting
of Base Rate Advances. Notices received
after 11:00 a.m. shall be deemed
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received on the next Business Day. Each
Notice of Borrowing shall be irrevocable
and shall specify the aggregate principal
amount of the Borrowing, the date of
Borrowing (which shall be a Business Day),
and whether the Borrowing is to
consist of Base Rate Advances or Eurodollar
Advances and (in the case of
Eurodollar Advances) the Permitted Currency
in which such Borrowing is to be
denominated and the Interest Period to be
applicable thereto.
(b)
Whenever
Borrower desires to convert all or a portion of an
outstanding Borrowing under the Syndicated
Loan Commitments, consisting of Base
Rate Advances into one or more Borrowings
consisting of Eurodollar Advances, or
to continue outstanding a Borrowing
consisting of Eurodollar Advances for a new
Interest Period, it shall give the
Administrative Agent at least four (4)
Eurodollar Business Days' (with respect to
an Alternative Currency Loan) and
three (3) Eurodollar Business Days' (with
respect to a Loan denominated in
Dollars) prior written notice substantially
in the form attached hereto as
EXHIBIT J (or telephonic notice promptly
confirmed in writing) (a "Notice of
Conversion/Continuation"). Such notice
shall be given prior to 11:00 a.m.
(Charlotte, North Carolina time) on the
date specified at the Payment Office of
the Administrative Agent. Each such Notice
of Conversion/Continuation shall be
irrevocable and shall specify the aggregate
principal amount of the Advances to
be converted or continued, the date of such
conversion or continuation, whether
the Advances are being converted into or
continued as Eurodollar Advances, the
Permitted Currency in which such Advances
are denominated and the Interest
Period applicable thereto. If, upon the
expiration of any Interest Period in
respect of any Borrowing, Borrower shall
have failed to deliver the Notice of
Conversion/Continuation, Borrower shall be
deemed to have elected to convert or
continue such Borrowing to a Borrowing
consisting of Base Rate Advances in
Dollars. So long as any Default or Event of
Default shall have occurred and be
continuing, no Borrowing may be converted
into or continued as (upon expiration
of the current Interest Period) Eurodollar
Advances unless the Administrative
Agent and each of the Syndicated Lenders
shall have otherwise consented in
writing. No conversion of any Borrowing of
Eurodollar Advances shall be
permitted except on the last day of the
Interest Period in respect thereof.
(c)
Without in any
way limiting Borrower's obligation to confirm in
writing any telephonic notice, the
Administrative Agent may act without
liability upon the basis of telephonic
notice believed by the Administrative
Agent in good faith to be from Borrower
prior to receipt of written
confirmation. In each such case, Borrower
hereby waives the right to dispute the
Administrative Agent's records of the terms
of such telephonic notice, absent
manifest error.
(d)
The
Administrative Agent shall promptly give each Syndicated Lender
notice by telephone (confirmed in writing)
or by telecopy or facsimile
transmission of the matters covered by the
notices given to the Administrative
Agent pursuant to this Section 2.06 with
respect to the Syndicated Loan
Commitments.
SECTION
2.07. SWING LINE LOANS.
(a)
Subject to and
upon the terms and conditions herein set forth
(including the limitation set forth in
Section 2.01), the Swing Line Lender
agrees to make to Borrower, from time to
time prior to the Maturity Date, Swing
Line Loans in Dollars for periods of up to
ninety
23
<PAGE>
(90) days in an aggregate principal amount
outstanding at any time not to exceed
the Swing Line Commitment then in effect.
Borrower shall be entitled to repay
and reborrow Swing Line Loans in accordance
with the provisions, and subject to
the limitations, set forth herein
(including the limitation set forth in Section
2.01). The aggregate principal amount of
each Swing Line Loan shall be not less
than $100,000 or a greater integral
multiple of $100,000.
(b)
Each Swing Line
Loan shall be made as a Swing Line Advance.
(c)
Whenever
Borrower desires to make a Swing Line Borrowing, it shall
give the Swing Line Lender (with a copy to
the Administrative Agent, unless the
Administrative Agent is also the Swing Line
Lender) prior written notice in the
form of a Notice of Borrowing (or
telephonic notice promptly confirmed in
writing) of such Swing Line Borrowing prior
to 11:00 a.m. (Charlotte, North
Carolina time) on the date of such Swing
Line Borrowing, specifying the
aggregate principal amount of the Swing
Line Borrowing and the date of such
Swing Line Borrowing (which shall be a
Business Day).
(d)
Borrower's
obligations to pay the principal of, and interest on, the
Swing Line Loans shall be evidenced by the
records of the Administrative Agent
and the Swing Line Lender and by the Swing
Line Note payable to the Swing Line
Lender (or the assignor of such Swing Line
Lender) completed in conformity with
this Agreement.
(e)
The outstanding
principal amount under each Swing Line Loan shall be
due and payable in full on the Maturity
Date.
(f)
At any time on
the request of the Swing Line Lender, each Syndicated
Lender other than the Swing Line Lender
shall purchase a participating interest
in all outstanding Swing Line Loans in an
amount equal to its Pro Rata Share
(based upon on its respective Syndicated
Loan Commitment) of such Swing Line
Loans, and the Swing Line Lender shall
furnish each Syndicated Lender with a
certificate evidencing such participating
interest. Such purchase shall be made
on the third Business Day after such
request is made; provided, however, that
unless an Event of Default has occurred and
is continuing on the date such
request is made, the purchase of a
participating interest in any Swing Line Loan
outstanding as a Swing Line Advance shall
not be required to be made until the
expiration of the current interest period
in effect for such Swing Line Loan. On
the date of such required purchase, each
Syndicated Lender will immediately
transfer to the Swing Line Lender, in
immediately available funds, the amount of
its participation. Whenever, at any time
after the Swing Line Lender has
received from any such Syndicated Lender
the funds for its participating
interest in a Swing Line Loan, the
Administrative Agent receives any payment on
account thereof, the Administrative Agent
will distribute to such Syndicated
Lender its participating interest in such
amount (appropriately adjusted, in the
case of interest payments, to reflect the
period of time during which such
Syndicated Lender's participating interest
was outstanding and funded);
provided, however, that if such payment
received by the Administrative Agent is
required to be returned, such Syndicated
Lender will return to the
Administrative Agent any portion thereof
previously distributed by the
Administrative Agent to it. Each Syndicated
Lender's obligation to purchase such
participating interests shall be absolute
and unconditional and shall not be
affected by any circumstance, including
without limitation (i) any setoff,
counterclaim, recoupment, defense or
24
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other right that such Syndicated Lender or
any other Person may have against the
Swing Line Lender requesting such purchase
or any other Person for any reason
whatsoever, (ii) the occurrence or
continuation of a Default or an Event of
Default or the termination of any of the
Commitments, (iii) any adverse change
in the condition (financial or otherwise)
of Borrower, any of its Consolidated
Subsidiaries, or any other Person, (iv) any
breach of this Agreement by
Borrower, any other Borrower, or any other
Lender, or (v) any other
circumstance, happening or event
whatsoever, whether or not similar to any of
the foregoing; provided, however, that no
such obligation shall exist (A) to the
extent that the aggregate Swing Line Loans
were advanced in excess of the Swing
Line Commitment then in effect, or in
excess of the limitation set forth in
Section 2.01, or (B) with respect to any
Swing Line Loan where the Swing Line
Lender actually advanced to Borrower net
proceeds from the Swing Line Loan (and
therefore was not refunding a previous
Swing Line Loan) at a time when (x) the
Swing Line Lender had actual knowledge that
an Event of Default had occurred and
then existed, and (y) the Required Lenders
had not agreed to waive such Event of
Default for purposes of funding such Swing
Line Loan.
ARTICLE IIA.
LETTERS OF CREDIT
SECTION
2A.01. L/C COMMITMENT.
(a)
Subject to the
terms and conditions hereof, the Issuing Lender, in
reliance on the agreements of the other
Lenders set forth in Section 2A.04,
agrees to issue standby letters of credit
("Letters of Credit") for the account
of Borrower on any Business Day from the
Closing Date through but not including
the Maturity Date in such form as may be
approved from time to time by the
Issuing Lender; provided, that the Issuing
Lender shall have no obligation to
issue any Letter of Credit if, after giving
effect to such issuance, (a) the
aggregate outstanding principal Dollar
Amount of the L/C Obligations would
exceed the L/C Commitment, (b) the
aggregate outstanding principal Dollar Amount
of Alternative Currency Loans and L/C
Obligations with respect to Alternative
Currency Letters of Credit would exceed the
Alternative Currency Commitment, or
(c) the aggregate outstanding principal
Dollar Amount of Loans and L/C
Obligations would exceed the total
Syndicated Loan Commitments. Each Letter of
Credit shall (i) be denominated in a
Permitted Currency in a minimum amount of
$100,000 (or the Alternative Currency
Amount thereof, as applicable), (ii) be a
standby letter of credit issued to support
obligations of Borrower or any of its
Subsidiaries, contingent or otherwise,
incurred in the ordinary course of
business, (iii) expire on a date
satisfactory to the Issuing Lender, which date
shall be no later than the earlier of (i)
one year after its date of issuance
and (ii) the fifth (5th) Business Day prior
to the Maturity Date and (iv) be
subject to the Uniform Customs and/or ISP
98, as set forth in the Application or
as determined by the Issuing Lender and, to
the extent not inconsistent
therewith, the laws of the State of
Georgia. The Issuing Lender shall not at any
time be obligated to issue any Letter of
Credit hereunder if such issuance would
conflict with, or cause the Issuing Lender
or any L/C Participant to exceed any
limits imposed by, any Requirement of Law.
References herein to "issue" and
derivations thereof with respect to Letters
of Credit shall also include
extensions or modifications of any existing
Letters of Credit, unless the
context otherwise requires. Each Existing
Letter of Credit shall be deemed to be
a Letter of Credit issued and outstanding
under this Agreement on and after the
Closing Date.
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SECTION
2A.02. PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT.
(a)
Borrower may
from time to time request that the Issuing Lender issue
a Letter of Credit by delivering to the
Issuing Lender at the Administrative
Agent's Lending Office an Application
therefor, completed to the satisfaction of
the Issuing Lender, and such other
certificates, documents and other papers and
information as the Issuing Lender may
request (which information shall include
the Permitted Currency in which the Letter
of Credit shall be denominated). Upon
receipt of any Application, the Issuing
Lender shall process such Application
and the certificates, documents and other
papers and information delivered to it
in connection therewith in accordance with
its customary procedures and shall,
after approving the same and receiving
confirmation from the Administrative
Agent that sufficient availability exists
under the Syndicated Facility for the
issuance of such Letter of Credit, subject
to Section 2A.01 and Article IV
hereof, promptly issue the Letter of Credit
requested thereby (but in no event
shall the Issuing Lender be required to
issue any Letter of Credit earlier than
four (4) Business Days after its receipt of
the Application therefor and all
such other certificates, documents and
other papers and information relating
thereto) by issuing the original of such
Letter of Credit to the beneficiary
thereof or as otherwise may be agreed by
the Issuing Lender and Borrower. The
Issuing Lender shall promptly furnish to
Borrower a copy of such Letter of
Credit and promptly notify each Lender of
the issuance and upon request by any
Lender, furnish to such Lender a copy of
such Letter of Credit and the amount of
such Lender's participation therein.
SECTION
2A.03. COMMISSIONS AND OTHER CHARGES.
(a)
Borrower shall
pay to the Administrative Agent, for the account of
the Issuing Lender and the L/C
Participants, a letter of credit commission with
respect to each Letter of Credit in an
amount equal to the face amount of such
Letter of Credit multiplied by the
Applicable Margin with respect to Eurodollar
Advances (determined on a per annum basis).
Such commission shall be payable
quarterly in arrears on the last Business
Day of each calendar quarter and on
the Maturity Date. The Administrative Agent
shall, promptly following its
receipt thereof, distribute to the Issuing
Lender and the L/C Participants all
commissions received pursuant to this
Section 2A.03 in accordance with their
respective Commitments.
(b)
In addition to
the foregoing commission, Borrower shall pay the
Administrative Agent, for the account of
the Issuing Lender, a fronting fee,
with respect to each Letter of Credit in an
amount equal to the face amount of
such Letter of Credit multiplied by 0.125%
per annum. Such issuance fee shall be
payable quarterly in arrears on the last
Business Day of each calendar quarter
commencing with the first such date to
occur after the issuance of such Letter
of Credit, on the Maturity Date and
thereafter on demand of the Administrative
Agent.
(c)
In addition to
the foregoing fees and commissions, Borrower shall
pay or reimburse the Issuing Lender for
such normal and customary costs and
expenses as are incurred or charged by the
Issuing Lender in issuing, effecting
payment under, amending or otherwise
administering any Letter of Credit.
(d)
The commissions,
fees, charges, costs and expenses payable pursuant
to this Section 2A.03 shall be payable in
the Permitted Currency in which the
applicable Letter of Credit is
26
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denominated.
SECTION
2A.04. L/C PARTICIPATIONS
(a)
The Issuing
Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the
Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase
and hereby accepts and purchases from the
Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C
Participant's own account and risk,
an undivided interest equal to such L/C
Participant's Pro Rata Share of the
Issuing Lender's obligations and rights
under and in respect of each Letter of
Credit issued hereunder and the amount of
each draft paid by the Issuing Lender
thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the
Issuing Lender that, if a draft is paid
under any Letter of Credit for which the
Issuing Lender is not reimbursed in full by
Borrower through a Syndicated Loan
or otherwise in accordance with the terms
of this Agreement, such L/C
Participant shall pay to the Issuing Lender
in the applicable Permitted Currency
upon demand at the Issuing Lender's address
for notices specified herein an
amount equal to such L/C Participant's Pro
Rata Share of the amount of such
draft, or any part thereof, which is not so
reimbursed.
(b)
Upon becoming
aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant
to Section 2A.04(a) in respect of any
unreimbursed portion of any payment made by
the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify
each L/C Participant of the amount
and due date of such required payment and
such L/C Participant shall pay to the
Issuing Lender in the applicable Permitted
Currency the amount specified on the
applicable due date. If any such amount is
paid to the Issuing Lender after the
date such payment is due, such L/C
Participant shall pay to the Issuing Lender
in the applicable Permitted Currency on
demand, in addition to such amount, the
product of (i) such amount, times (ii) the
daily average Federal Funds Rate as
determined by the Administrative Agent
during the period from and including the
date such payment is due to the date on
which such payment is immediately
available to the Issuing Lender, times
(iii) a fraction the numerator of which
is the number of days that elapse during
such period and the denominator of
which is 360. A certificate of the Issuing
Lender with respect to any amounts
owing under this Section 2A.04 shall be
conclusive in the absence of manifest
error. With respect to payment to the
Issuing Lender of the unreimbursed amounts
described in this Section 2A.04, if the L/C
Participants receive notice that any
such payment is due (A) prior to 1:00 p.m.
(Charlotte, North Carolina time) on
any Business Day, such payment shall be due
that Business Day, and (B) after
1:00 p.m. (Charlotte, North Carolina time)
on any Business Day, such payment
shall be due on the following Business
Day.
(c)
Whenever, at any
time after the Issuing Lender has made payment
under any Letter of Credit and has received
from any L/C Participant its Pro
Rata Share of such payment in accordance
with this Section 2A.04, the Issuing
Lender receives any payment related to such
Letter of Credit (whether directly
from Borrower or otherwise), or any payment
of interest on account thereof, the
Issuing Lender will distribute to such L/C
Participant its Pro Rata Share
thereof; provided, that in the event that
any such payment received by the
Issuing Lender shall be required to be
returned by the Issuing Lender, such L/C
Participant shall return to the Issuing
Lender the portion thereof previously
distributed by the Issuing Lender to
it.
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SECTION
2A.05. REIMBURSEMENT OBLIGATION OF BORROWER.
(a)
Reimbursement by
Borrower. In the event of any drawing under any
Letter of Credit, Borrower agrees to
reimburse (either with the proceeds of a
Syndicated Loan as provided for in this
Section 2A.05 or with funds from other
sources), in same day funds in the
applicable Permitted Currency in which such
Letter of Credit was denominated, the
Issuing Lender on each date on which the
Issuing Lender notifies Borrower of the
date and amount of a draft paid under
any Letter of Credit for the amount of (i)
such draft so paid and (ii) any
amounts referred to in Section 2A.03(c) or
Section 3.15(e) incurred by the
Issuing Lender in connection with such
payment.
(b)
Reimbursement
from Syndicated Borrowing. Unless Borrower shall
immediately notify the Issuing Lender that
Borrower intends to reimburse the
Issuing Lender for such drawing from other
sources or funds, Borrower shall be
deemed to have timely given a Notice of
Borrowing to the Administrative Agent
requesting that the Lenders make a Base
Rate Advance on such date in the Dollar
Amount of (a) such draft so paid and (b)
any amounts referred to in Section
2A.03(c) incurred by the Issuing Lender in
connection with such payment, and the
Lenders shall make a Base Rate Advance in
such Dollar Amount, the proceeds of
which shall be applied to reimburse the
Issuing Lender for the amount of the
related drawing and costs and expenses.
Each Lender acknowledges and agrees that
its obligation to fund a Syndicated Loan in
accordance with this Section 2A.05
to reimburse the Issuing Lender for any
draft paid under a Letter of Credit is
absolute and unconditional and shall not be
affected by any circumstance
whatsoever, including, without limitation,
non-satisfaction of the conditions
set forth in Section 2.06(a) or Article IV.
If Borrower has elected to pay the
amount of such drawing with funds from
other sources and shall fail to reimburse
the Issuing Lender as provided above, the
unreimbursed amount of such drawing
shall bear interest at the rate which would
be payable on any outstanding Base
Rate Advance which were then overdue from
the date such amounts become payable
(whether at stated maturity, by
acceleration or otherwise) until payment in
full.
SECTION
2A.06. OBLIGATIONS ABSOLUTE
(a)
Borrower's
obligations under this Article IIA (including without
limitation the Reimbursement Obligation)
shall be absolute and unconditional
under any and all circumstances and
irrespective of any set-off, counterclaim or
defense to payment which Borrower may have
or have had against the Issuing
Lender or any beneficiary of a Letter of
Credit or any other Person. Borrower
also agrees that the Issuing Lender and the
L/C Participants shall not be
responsible for, and Borrower's
Reimbursement Obligation under Section 2A.05
shall not be affected by, among other
things, the validity or genuineness of
documents or of any endorsements thereon,
even though such documents shall in
fact prove to be invalid, fraudulent or
forged, or any dispute between or among
Borrower and any beneficiary of any Letter
of Credit or any other party to which
such Letter of Credit may be transferred or
any claims whatsoever of Borrower
against any beneficiary of such Letter of
Credit or any such transferee. The
Issuing Lender shall not be liable for any
error, omission, interruption or
delay in transmission, dispatch or delivery
of any message or advice, however
transmitted, in connection with any Letter
of Credit, except for errors or
omissions caused by the Issuing Lender's
gross negligence or willful misconduct.
Borrower agrees that any action taken or
omitted by the Issuing Lender under or
in connection with any Letter of Credit or
the related drafts or documents, if
done in the absence of gross negligence or
willful misconduct, shall
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be binding on Borrower and shall not result
in any liability of the Issuing
Lender or any L/C Participant to Borrower.
The responsibility of the Issuing
Lender to Borrower in connection with any
draft presented for payment under any
Letter of Credit shall, in addition to any
payment obligation expressly provided
for in such Letter of Credit, be limited to
determining that the documents
(including each draft) delivered under such
Letter of Credit in connection with
such presentment are in conformity with
such Letter of Credit.
SECTION
2A.07. EFFECT OF LETTER OF CREDIT APPLICATION.
(a) To the
extent that any provision of any Application related to any
Letter of Credit is inconsistent with the
provisions of this Article IIA, the
provisions of this Article IIA shall
apply.
ARTICLE III.
GENERAL LOAN TERMS
SECTION
3.01. DISBURSEMENT OF FUNDS.
(a) No
later than 1:00 p.m. (Charlotte, North Carolina time) on the
date
of each Syndicated Loan denominated in
Dollars pursuant to the Syndicated Loan
Commitments (other than one resulting from
a conversion or continuation pursuant
to Section 2.06(b)), each Lender will make
available its Pro Rata Share of such
Syndicated Loan in Dollars in immediately
available funds at the Payment Office
of the Administrative Agent. The
Administrative Agent will make available to
Borrower the aggregate of the amounts (if
any) so made available by the
Syndicated Lenders to the Administrative
Agent by crediting or wiring such
amounts to an account specified by Borrower
in the most recent notice
substantially in the form of EXHIBIT K (a
"Notice of Account Designation"),
delivered by Borrower to the Administrative
Agent or as may be otherwise agreed
upon by Borrower and the Administrative
Agent, by the close of business on such
Business Day. In the event that the
Syndicated Lenders do not make such amounts
available to the Administrative Agent by
the time prescribed above, but such
amount is received later that day, such
amount may be credited to Borrower in
the manner described in the preceding
sentence on the next Business Day (with
interest on such amount to begin accruing
hereunder on such next Business Day).
(b) No
later than 11:00 a.m. (the time of the Administrative Agent's
Correspondent) on the date of each
Alternative Currency Loan pursuant to the
Syndicated Loan Commitments (other than one
resulting from a conversion or
continuation pursuant to Section 2.06(b)),
each Lender will make available its
Pro Rata Share of such Alternative Currency
Loan in the requested Alternative
Currency in immediately available funds at
the office of the Administrative
Agent's Correspondent. The Administrative
Agent will make available to Borrower
the aggregate of the amounts (if any) so
made available by the Syndicated
Lenders to the Administrative Agent by
crediting or wiring such amounts to the
account specified by Borrower in the most
recent Notice of Account Designation,
by the close of business on such Business
Day. In the event that the Syndicated
Lenders do not make such amounts available
to the Administrative Agent by the
time prescribed above, but such amount is
received later that day, such amount
may be credited to Borrower in the manner
described in the preceding sentence on
the next Business Day (with interest on
such amount to begin accruing hereunder
on such next Business Day).
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(c) No
later than 2:00 p.m. (Charlotte, North Carolina time) on the
date
of each Swing Line Loan, the Swing Line
Lender will make available the principal
amount of the Swing Line Loan available to
Borrower in Dollars by crediting or
wiring such amounts to the account
specified by Borrower in the most recent
Notice of Account Designation.
(d) Unless
the Administrative Agent shall have been notified by any
Syndicated Lender prior to the date of a
Syndicated Loan Borrowing that such
Lender does not intend to make available to
the Administrative Agent such
Lender's portion of such Borrowing to be
made on such date, the Administrative
Agent may assume that such Lender has made
such amount available to the
Administrative Agent on such date and the
Administrative Agent may make
available to Borrower a corresponding
amount. If such corresponding amount is
not in fact made available to the
Administrative Agent by such Lender on the
date of such Borrowing, the Administrative
Agent shall be entitled to recover
such corresponding amount on demand from
such Lender together with interest at
the Federal Funds Rate. If such Lender does
not pay such corresponding amount
forthwith upon the Administrative Agent's
demand therefor, the Administrative
Agent shall promptly notify Borrower, and
Borrower shall immediately pay such
corresponding amount to the Administrative
Agent together with interest at the
rate specified for such Borrowing. Nothing
in this subsection shall be deemed to
relieve any Syndicated Lender from its
obligation to fund its Syndicated Loan
Commitment hereunder or to prejudice any
rights which Borrower may have against
any Syndicated Lender as a result of any
default by such Lender hereunder.
(e) All
Syndicated Loans under the Syndicated Loan Commitments shall be
loaned by the Lenders on the basis of their
Pro Rata Share of the Syndicated
Loan Commitments. All Swing Line Loans
shall be loaned by the Swing Line Lender
in accordance with Section 2.07. No Lender
shall be responsible for any default
by any other Lender in its obligations
hereunder, and each Lender shall be
obligated to make the Loans provided to be
made by it hereunder, regardless of
the failure of any other Lender to fund its
Commitments hereunder.
SECTION
3.02. INTEREST.
(a)
Borrower agrees to pay interest in respect of all unpaid
principal
amounts of Syndicated Loans from the
respective dates such principal amounts
were advanced to maturity (whether by
acceleration, notice of prepayment or
otherwise) at rates per annum equal to the
applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in effect from time
to
time;
(ii) For Eurodollar Advances--The relevant LIBOR plus the
Applicable
Margin plus the Mandatory Cost; or
(b)
Borrower agrees to pay interest in respect of all unpaid
principal
amounts of the Swing Line Loans made to
Borrower from the respective dates such
principal amounts were advanced to maturity
(whether by acceleration, notice of
prepayment or otherwise) at the Base Rate
in effect from time to time;
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(c)
Overdue principal and, to the extent not prohibited by applicable
law,
overdue interest, in respect of the Loans,
and all other overdue amounts owing
hereunder, shall bear interest from each
date that such amounts are overdue:
(i) in the case of overdue principal and interest with respect
to
all Loans outstanding as Eurodollar
Advances, at the rate otherwise applicable
for the then-current Interest Period plus
an additional two percent (2.0%) per
annum; thereafter at the rate in effect for
Base Rate Advances plus an
additional two percent (2.0%) per annum;
and
(ii) in the case of overdue principal and interest with respect
to
all other Loans outstanding as Base Rate
Advances and Swing Line Advances, and
all other Obligations hereunder (other than
Loans), at a rate equal to the
applicable Base Rate plus an additional two
percent (2.0%) per annum;
(d)
Interest on each Loan shall accrue from and including the date of
such
Loan to but excluding the date of any
repayment thereof; provided, that if a
Loan is repaid on the same day made, one
day's interest shall be paid on such
Loan. Interest on all Base Rate Advances
and Swing Line Advances shall be
payable quarterly in arrears on the last
calendar day of each calendar quarter
in each year. Interest on all outstanding
Eurodollar Advances shall be payable
on the last day of each Interest Period
applicable thereto, and, in the case of
Interest Periods in excess of three months
(in the case of Eurodollar Advances),
on each day which occurs every three (3)
months, as the case may be, after the
initial date of such Interest Period.
Interest on all Loans shall be payable on
any conversion of any Advances comprising
such Loans into Advances of another
Type, prepayment (on the amount prepaid),
at maturity (whether by acceleration,
notice of prepayment or otherwise) and,
after maturity, on demand; and
(e) The
Administrative Agent, upon determining LIBOR for any Interest
Period, shall promptly notify by telephone
(confirmed in writing) or in writing
Borrower and the other Syndicated Lenders.
Any such determination shall, absent
manifest error, be final, conclusive and
binding for all purposes.
SECTION
3.03. INTEREST PERIODS.
(a) In
connection with the making or continuation of, or conversion
into,
each Borrowing of Eurodollar Advances,
Borrower shall select an Interest Period
to be applicable to such Eurodollar
Advances, which Interest Period shall be
either a one (1), two (2), three (3) or six
(6) month period.
(b)
Notwithstanding paragraphs (a):
(i) The initial Interest Period for any Borrowing of Eurodollar
Advances shall commence on the date of such
Borrowing (including the date of any
conversion from a Borrowing consisting of
Base Rate Advances) and each Interest
Period occurring thereafter in respect of a
continuation of such Borrowing shall
commence on the day on which the
immediately preceding Interest Period expires;
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(ii) If any Interest Period would otherwise expire on a day which
is
not a Business Day, such Interest Period
shall expire on the next succeeding
Business Day, provided that if any Interest
Period in respect of Eurodollar
Advances would otherwise expire on a day
that is not a Business Day but is a day
of the month after which no further
Business Day occurs in such month, such
Interest Period shall expire on the next
preceding Business Day;
(iii) Any Interest Period in respect of Eurodollar Advances
which
begins on a day for which there is no
numerically corresponding day in the
calendar month at the end of such Interest
Period shall, subject to part (iv)
below, expire on the last Business Day of
such calendar month; and
(iv) No Interest Period with respect to the Loans shall extend
beyond the Maturity Date.
SECTION
3.04. FEES.
(a)
Borrower shall pay to the Administrative Agent, for the account of
and
distribution of the respective Pro Rata
Share to each Lender, a facility fee
(the "Facility Fee") for the period
commencing on the Closing Date to and
including the Maturity Date, computed at a
rate equal to the Applicable
Commitment Percentage per annum multiplied
by the aggregate principal amount of
the Syndicated Loan Commitments of the
Lenders, such fee being payable quarterly
in arrears on the date which is five (5)
Business Days following the last day of
each fiscal quarter of Borrower and on the
Maturity Date.
(b)
Borrower shall pay to the Administrative Agent and the Lenders
such
arrangement fees, up front fees and other
fees for their respective services in
the respective amounts as previously agreed
in writing by Borrower with the
Administrative Agent.
SECTION
3.05. PREPAYMENTS OF BORROWINGS.
(a)
Voluntary Prepayments.
(i)
Borrower may, at its option, prepay Borrowings at any time in
whole, or from time to time in part, in
amounts aggregating $1,000,000 or any
greater integral multiple of $500,000 (or,
in each case, the Alternative
Currency Amount thereof) with respect to
Eurodollar Advances, $1,000,000 or any
greater integral multiple of $100,000 with
respect to Base Rate Advances, and
$100,000 or any greater integral multiple
of $100,000 with respect to Swing Line
Advances, by paying the principal amount to
be prepaid (in the Permitted
Currency in which such Borrowings were
initially funded) together with interest
accrued and unpaid thereon to the date of
prepayment, together with, in the case
of Eurodollar Advances, all compensation
payments pursuant to Section 3.11 if
such prepayment is made on a date other
than the last day of the Interest Period
applicable thereto.
(ii) Borrower shall give written notice substantially in the
form
attached hereto as EXHIBIT L (a "Notice of
Prepayment") (or telephonic notice
confirmed in writing) to
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the Administrative Agent of any intended
prepayment of the Loans not less than
(A) four (4) Business Days prior to any
prepayment of Alternative Currency
Loans, (B) three (3) Business Days prior to
any prepayment of Eurodollar
Advances denominated in Dollars and (C) one
(1) Business Day prior to any
prepayment of Base Rate Advances and Swing
Line Advances. Such notice, once
given, shall be irrevocable and shall
specify (w) the date of repayment, (x) the
amount of repayment, (y) whether the
repayment is of Syndicated Loans, Swing
Line Loans, or a combination thereof
(including the amount allocable to each)
and (z) whether the repayment is of
Eurodollar Advances denominated in an
Alternative Currency, Eurodollar Advances
denominated in Dollars, Base Rate
Advances, Swing Line Loans or a combination
thereof (including the amount
allocable to each). Upon receipt of such
notice of prepayment, the
Administrative Agent shall promptly notify
each Lender of the contents of such
notice and of such Lender's share of such
prepayment.
(iii) In the absence of a designation by Borrower, the
Administrative Agent shall, subject to the
foregoing, make such designation in
its sole discretion. All voluntary
prepayments shall be applied to the payment
of interest on the Borrowings prepaid
before application to principal.
(b)
Mandatory Prepayments.
(i) If at any time (as determined by the Administrative Agent
under
clause (ii) below), based upon the Dollar
Amount of all outstanding Loans and
L/C Obligations, (A) solely as a result of
currency fluctuation, (I) the
outstanding principal amount of all
Syndicated Loans exceeds one hundred and
five percent (105%) of the Syndicated Loan
Commitments less the sum of all
outstanding Swing Line Loans and L/C
Obligations, or (II) the outstanding
principal amount of all Alternative
Currency Loans and L/C Obligations with
respect to Alternative Currency Letters of
Credit exceeds one hundred and five
percent (105%) of the Alternative Currency
Commitment, and (B) for any other
reason, (I) the outstanding principal
amount of all Syndicated Loans plus Swing
Line Loans plus L/C Obligations exceeds the
Syndicated Loan Commitments, (II)
the outstanding principal amount of all
Alternative Currency Loans and L/C
Obligations with respect to Alternative
Currency Letters of Credit exceeds the
Alternative Currency Commitment, (III) the
outstanding principal amount of all
Swing Line Loans exceeds the Swing Line
Commitment, or (IV) the outstanding
amount of all L/C Obligations exceeds the
L/C Commitment, then, in each such
case, Borrower shall immediately repay
Loans, in the currency in which such
Loans were initially funded, in an amount
necessary to eliminate such excess.
(ii) Borrowers' compliance with this Section 3.05(b) shall be
tested
from time to time by the Administrative
Agent at its sole discretion, but in any
event shall be tested on (A) the date on
which a Borrower requests the Lenders
to make an Advance or the Issuing Lender to
issue a Letter of Credit. Each such
repayment pursuant to this Section 3.05(b)
shall be accompanied by any amount
required to be paid pursuant to Section
3.11.
SECTION
3.06. PAYMENTS, ETC.
(a) Except
as otherwise specifically provided herein, all payments under
this Agreement and the other Credit
Documents shall be made without defense,
set-off or counterclaim to the
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Administrative Agent, (i) not later than
12:00 Noon (Charlotte, North Carolina
time) on the date when due with respect to
any Loan or Letter of Credit,
denominated in Dollars (including any fee,
commission or other amount with
respect thereto) or 11:00 a.m. (the time of
the Administrative Agent's
Correspondent) on the date when due with
respect to any Alternative Currency
Loan or Alternative Letter of Credit
(including any fee, commission or other
amount with respect thereto) and (ii) shall
be made in Dollars or such
Alternative Currency as applicable, in
immediately available funds at its
Payment Office.
(b) (i)
All such payments shall be made free and clear of and without
deduction or withholding for any Taxes in
respect of this Agreement, the Notes
or other Credit Documents, or any payments
of principal, interest, fees or other
amounts payable hereunder or thereunder
(but excluding, except as provided in
paragraph (iii) hereof, any Taxes imposed
on the overall net income of the
Lenders pursuant to the laws of the
jurisdiction in which the principal
executive office or appropriate Lending
Office of such Lender is located). If
any Taxes are so levied or imposed,
Borrower agrees (A) to pay the full amount
of such Taxes, and such additional amounts
as may be necessary so that every net
payment of all amounts due hereunder and
under the Notes and other Credit
Documents, after withholding or deduction
for or on account of any such Taxes
(including additional sums payable under
this Section 3.06), will not be less
than the full amount provided for herein
had no such deduction or withholding
been required, (B) to make such withholding
or deduction and (C) to pay the full
amount deducted to the relevant authority
in accordance with applicable law.
Borrower will furnish to the Administrative
Agent and each Lender, within 30
days after the date the payment of any
Taxes is due pursuant to applicable law,
certified copies of tax receipts evidencing
such payment by Borrower. Borrower
will indemnify and hold harmless the
Administrative Agent and each Lender and
reimburse the Administrative Agent and each
Lender upon written request for the
amount of any Taxes so levied or imposed
and paid by the Administrative Agent or
Lender and any liability (including
penalties, interest and expenses) arising
therefrom or with respect thereto, whether
or not such Taxes were correctly or
illegally asserted. A certificate as to the
amount of such payment by such
Lender or the Administrative Agent, absent
manifest error, shall be final,
conclusive and binding for all
purposes.
(ii) Each Lender that is organized under the laws of any
jurisdiction other than the United States
of America or any State thereof
(including the District of Columbia) agrees
to furnish to Borrower and the
Administrative Agent, on the Closing Date
and otherwise prior to the time it
becomes a Lender hereunder, two copies of
either U.S. Internal Revenue Service
Form W-8ECI or U.S. Internal Revenue
Service Form W-8BEN or any successor forms
thereto (wherein such Lender claims
entitlement to complete exemption from or
reduced rate of U.S. Federal withholding
tax on interest paid by Borrower
hereunder) and to provide to Borrower and
the Administrative Agent a new Form
W-8ECI or Form W-8BEN or any successor
forms thereto if any previously delivered
form is found to be incomplete or incorrect
in any material respect or upon the
obsolescence of any previously delivered
form.
(iii) Borrower shall also reimburse the Administrative Agent
and
each Lender, upon written request, for any
Taxes imposed (including, without
limitation, Taxes imposed on the overall
net income of the Administrative Agent
or Lender or its applicable Lending Office
pursuant to the laws of the
jurisdiction in which the principal
executive office or the applicable Lending
Office of the Administrative Agent or
Lender is located) as the Administrative
Agent or Lender
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<PAGE>
shall determine are payable by the
Administrative Agent or Lender in respect of
amounts paid by or on behalf of Borrower to
or on behalf of the Administrative
Agent or Lender pursuant to paragraph (i)
hereof.
(c)
Subject to Section 3.03(ii), whenever any payment to be made
hereunder
or under any Note shall be stated to be due
on a day which is not a Business
Day, the due date thereof shall be extended
to the next succeeding Business Day
and, with respect to payments of principal,
interest thereon shall be payable at
the applicable rate during such
extension.
(d) All
computations of interest and fees shall be made on the basis of
a
year of 360 days for the actual number of
days (including the first day but
excluding the last day) occurring in the
period for which such interest or fees
are payable (to the extent computed on the
basis of days elapsed), except that
interest on Base Rate Advances and
Alternative Currency Loans denominated in
Pounds Sterling shall be computed on the
basis of a year of 365 days for the
actual number of days. Interest on Base
Rate Advances shall be calculated based
on the Base Rate from and including the
date of such Loan to but excluding the
date of the repayment or conversion
thereof. Interest on Swing Line Advances
shall be calculated based on the Base Rate
from and including the date of such
Loan to but excluding the date of the
repayment or conversion thereof. Interest
on Eurodollar Advances shall be calculated
as to each Interest Period from and
including the first day thereof to but
excluding the last day thereof. Each
determination by the Administrative Agent
of an interest rate or fee hereunder
shall be made in good faith and, except for
manifest error, shall be final,
conclusive and binding for all
purposes.
(e)
Payment by Borrower to the Administrative Agent in accordance with
the
terms of this Agreement shall, as to
